Court again limits Congress’s power
By Joan Biskupic
The Washington Post, May 16, 2000
A sharply divided Supreme Court struck down part of a law crafted to help survivors of rape and domestic violence, ruling 5-4 yesterday that Congress overstepped its power when it gave women a right to sue their attackers.
The decision lifts a portion of the Violence Against Women Act that was meant to guarantee that victims of sexual assaults would not be dependent on the decisions of local prosecutors and could themselves sue assailants in federal court.
But of broader consequence, yesterday’s ruling continues the pattern of a five-justice majority limiting the power of Congress and its ability to intervene in matters normally addressed by states.
The case involved a Virginia Tech student who claimed she was raped by two football players and who brought the first lawsuit under the law. Joined by the Clinton administration, her attorneys contended that Congress had the authority to pass the act based on its constitutional power to regulate interstate commerce–arguing in effect that women who feared being attacked would be hindered from going out at night, taking public transportation or engaging in other activity that would help them find a job and contribute to the economy. Since some of that activity occurs across state lines, Congress believed it had the authority to deter violence against women trying to travel or do business around the country.
But in its decision, the court rebuffed that argument.
“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution,” Chief Justice William H. Rehnquist wrote, emphasizing that “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” He was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
That fivesome has consistently reined in federal power in recent years, but yesterday’s decision went further, marking the first time since the New Deal era that the court rejected extensive findings by Congress that an activity substantially affects interstate commerce. Congress’s power under the commerce clause is important because it offers lawmakers a way to address problems–racial discrimination, most notably, in the 1960s–that federal lawmakers believe states have failed to handle properly themselves.
Responding to the ruling, Martha F. Davis, who represented former Virginia Tech student Christy Brzonkala, said the act’s civil remedy “gave women a way to take matters in their own hands.” Davis, of the NOW Legal Defense and Education Fund, said she was most concerned by the court’s rejection of Congress’s findings about the harmful effects that rape and domestic violence have on employment and other interstate commerce.
But Michael E. Rosman, of the Center for Individual Rights, who represented the men Brzonkala accused of raping her, countered that the framers of the Constitution “thought that if Congress could regulate whatever it wanted throughout the nation–and this law is just one small example–it would be dangerous.”
Congress adopted the 1994 law after determining in four years of hearings that violent crimes against women were a pervasive problem but that states were failing to treat these offenses as seriously as other crimes. The law made rape and domestic abuse a federal crime if the assailants crossed state lines to attack their victims and provided hundreds of millions of dollars for local governments to enforce their own sexual assault laws.
A majority of the states had urged Congress to pass the provision allowing victims to win money damages in civil litigation and 36 states had entered yesterday’s case on Brzonkala’s side.
But the court said that, in the end, “gender-motivated” crimes are not the kind of economic activity covered by Congress’s power to regulate interstate commerce. “If Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence,” Rehnquist wrote, affirming the Richmond-based U.S. Court of Appeals for the 4th Circuit and relying primarily on a 1995 decision that rejected Congress’s attempt to ban guns near local schools.
The federal government had argued that, in addition to the commerce clause, the act’s private remedy was a valid exercise of Congress’s power to enforce civil rights under the Fourteenth Amendment, which guarantees equal protection of the laws. Congress had found that discriminatory stereotypes about rape victims made it difficult for local jurisdictions to adequately investigate and prosecute violence against women.
But the court said Congress’s constitutional power in this area covers only state actions, not individual wrongdoing, so the Violence Against Women provision improperly targets individuals who have committed crimes motivated by gender bias.
Justice David H. Souter, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, penned a vigorous dissent that addressed both the boundary between federal and state power, as well as the gravity of crime against women. They said the law should be upheld as a valid exercise of Congress’ power to deal with an activity that has a substantial effect on interstate commerce.
Comparing the law to the Civil Rights Act of 1964, Souter wrote, “Gender-based violence in the 1990s was shown to operate in a manner similar to racial discrimination in the 1960s in reducing the mobility of employees and their production and consumption of goods shipped in interstate commerce.”
Speaking to the majority’s larger effort to keep the federal government out of the traditional business of the states, Souter criticized the majority’s retreat to decades-old principles. “The federalism of some earlier time is no more adequate to account for [today’s economy] than the theory of laissez-faire was able to govern the national economy 70 years ago.”
Brzonkala brought her lawsuit against Antonio J. Morrison and James Crawford for the alleged 1994 dormitory attack, after first filing a complaint against the men under Virginia Polytechnic Institute’s sexual assault policy. A committee found Morrison guilty of sexual assault and suspended him, but after subsequent hearings his offense was reduced and his punishment was set aside. The Justice Department joined the dispute, United States v. Morrison, on Brzonkala’s side.